I’ll vote in favor of the community oversight referendum

The Election Commission voted today to put the Community Oversight Board referendum on the upcoming November 6 ballot. I’ll vote in favor of the referendum.

Nationally, community oversight and advisory boards comes in many shapes and sizes. All have strengths and weaknesses. There probably are not any examples that make everyone happy.

If you want to learn about the different approaches and models, and their pros and cons, you can start with this PBS Frontline article from 2016. From there, just google something like “community oversight board strengths and weaknesses” or “civilian review board effectiveness,” and you’ll zero in on the basic arguments for and against the several predominant models. I think this is useful background information for everyone to have in thinking about the referendum.

It is important to me that there is broad consensus that Nashville should have some kind of civilian community board. On November 8, 2017, in an email to Council members, the FOP told us: “The Fraternal Order of Police is not opposed to some manner of an advisory board that is compliant with current law.” At a major NOAH event on October 29, 2017, Mayor Barry also said that she would support a community oversight board if it resulted from a discussion among all interested groups. And now Mayor Briley has also supported the concept in general.

Of course, now we have a specific proposal and it will be on the ballot. The language is here.

Is the referendum compliant with current law? I guess we will find out if a lawsuit is filed, but I think it is. This referendum language fixes several previous legal objections. For example, a complaint made about the legislation that was before the Council last year was that the scope of the subpoena power was unlawfully broad. The current referendum language definitely defeats this objection. The referendum does this by making the power to compel evidence and testimony a part of the Metro Charter. And advocates also are now armed with a Tennessee Attorney General Opinion from March 2018 that suggests the referendum language about compelling evidence is legal.

There was a second significant legal objection to the prior legislative version. The bill the Council considered last year would have required in some instances that the police department follow the direction of the oversight board. This was potentially in conflict with the Metro Charter, which gives the police chief wide discretion and authority to run the police department. To address this concern, the referendum would only allow the proposed oversight board to issue recommendations and reports. Under the referendum, the police department would not be required to accept the oversight board’s recommendations.

There are a few other factors to keep in mind. Civilian oversight of our protectors – locally or at the state or federal level – is a core principle of democracy. Metro already has civilian oversight of the police department. While the police chief has wide latitude under the Charter to run his department how he wants, that power is limited by civilian control. The Charter explains that the police chief “…shall make regulations, with the approval of the mayor and in conformity with applicable ordinances, concerning the operation of the department, the conduct of the officers and employees thereof, their uniforms, arms and other equipment for their training.” Nashville has about doubled in population since the Charter was drafted. It’s not unreasonable or anti-police to add another layer of formality to the existing civilian oversight of the police department. To the contrary, we should all be able to agree that sunlight, transparency, oversight, and checks and balances lead to better results.

Finally, it is Dr. King’s Letter from Birmingham Jail that most compels me to vote for the referendum. His words have as much meaning today as they did in 1963. Here’s the key point:

I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizens Councillor or the Ku Klux Klanner but the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, “I agree with you in the goal you seek, but I can’t agree with your methods of direct action”; who paternalistically feels that he can set the timetable for another man’s freedom; who lives by the myth of time; and who constantly advises the Negro to wait until a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

Any “yeah, but…” argument that the referendum language could be better just furthers the “myth of time” that Dr. King exposed in his letter. The better path is to embrace modernizing Nashville’s civilian oversight as an important step forward for the city.

Bob Mendes represents all of Nashville as a Council-At-Large member of Nashville’s Metro Council. He is Chair of the Council’s Charter Revision Committee, a member of the Metropolitan Audit Committee, and a member of the Council’s Budget & Finance Committee, Rules & Confirmations Committee, and Ad Hoc Affordable Housing Committee. Bob also practices business law at Waypoint Law PLLC. Bob’s complete bio is here. You can follow Bob @mendesbob.